The emotive words “mass execution” conjure up in my mind considerably more than the eight executions the state of Arkansas planned to perform over the course of 11 days, two of which, as far as I am aware, had been carried out at the time the headline appeared. Che Guevara would have laughed at the idea that a mere eight people put to death, let alone two, constituted a mass execution. He would have taken the use of the word as further proof of the decadence of late capitalist society and its ripeness for overthrow: and so, no doubt, would Slavoj Zizek, mass murder’s star philosopher and proselytizer.

In my last post on Miller v. Alabama, I discussed the majority opinion’s use of a common law constitutionalism approach to implementing the cruel and unusual requirement. The approach seems constrained on its face, but in fact turns out not to be.

In this post, I want to explore Justice Thomas’s originalist dissent and his use of originalism to constrain precedent. The majority had relied on two lines of precedents that it then expanded to hold that a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders is cruel and unusual under the Eight Amendment. Justice Thomas argues that neither of these lines of precedent is consistent with the original understanding of the Eight Amendment.

Thomas disputes the first line of cases on originalist grounds. These cases adopt categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty – cases such as Roper v Simmons, which bars capital punishment for children, and Graham v. Florida, which prohibits life without the possibility of parole for a juvenile convicted of a nonhomicide offense. Relying on Justice Scalia’s opinion in Harmelin v. Michigan, Thomas concluded that the Cruel and Unusual Punishments Clause does not contain a proportionality principle and therefore does not authorize courts to invalidate any punishment they deem “disproportionate to the severity of the crime or to a particular class of offenders.”

Miller v. Alabama is an interesting case decided by the Supreme Court last June which has not received that much attention. In Miller, the Supreme Court held that the Eight Amendment forbids as cruel and unusual punishment a sentencing scheme that mandates life in prison without the possibility of parole for juvenile homicide offenders.

In this post, I will discuss some aspects of the majority’s opinion. In my next post, I will address Justice Thomas’s originalist dissent.

In the majority opinion written by Justice Kagan for the four liberals and Justice Kennedy, the Court bases its holding on two lines of cases. As the syllabus for the decision states:

Two strands of precedent reflecting the concern with proportionate punishment come together here. The first has adopted categorical bans on sentencing practices based on mismatches between the culpability of a class of offenders and the severity of a penalty. See, e.g., Kennedy v. Louisiana. Several cases in this group have specially focused on juvenile offenders, because of their lesser culpability. Thus, Roper v. Simmons held that the Eighth Amendment bars capital punishment for children, and Graham v. Florida, concluded that the Amendment prohibits a sentence of life without the possibility of parole for a juvenile convicted of a nonhomicide offense. Graham further likened life without parole for juveniles to the death penalty, thereby evoking a second line of cases. In those decisions, this Court has required sentencing authorities to consider the characteristics of a defendant and the details of his offense before sentencing him to death. See, e.g., Woodson v. North Carolina. Here, the confluence of these two lines of precedent leads to the conclusion that mandatory life without parole for juveniles violates the Eighth Amendment.

Signficantly, neither of these two lines of cases actually supports the decision here. Instead, the Court kind of adds the two together – juvenile offender plus mandatory sentence – to justify the holding of cruel and unusual. The opinion reads as a well crafted exercise of common law decisionmaking. In fact, it reminded me of a Justice Brennan opinion – a first rate use of the materials to justify a liberal result that the precedents did not really support but that the opinion persuasively claimed grew out of the prior cases.

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